Hollywood Screenwriters Worry About Aggressive Copyright Enforcement And Threats To An Open Internet

from the good-for-them dept

The Writers Guild of America West has been quite forward looking for a while. They were a surprise early voice against SOPA, despite representing thousands of Hollywood screenwriters, who you might think would fall in line with the likes of the MPAA. But, just as they were worried about SOPA, they continue to worry about drifts towards copyright maximalism. Like many individuals and organizations, the WGAW sent in comments on the recent "green paper" concerning copyright reform from the USPTO.

The letter opens up by talking about just how much their members rely on copyright to make a living, and how important copyright is -- but then highlights where copyright law has gone too far, and how it risks harming an open internet. Furthermore, the WGAW rightly worries about certain attempts to expand copyright law and enforcement that would further harm the open internet. While this may seem surprising, the reality is that the WGAW recognizes it needs to represent all of its members, and the majority of members have found much greater opportunities by being able to work outside the major Hollywood gatekeepers. They recognizes that tools like YouTube and BitTorrent are actually really useful, rather than dangerous.

Front and center, the letter takes on the ridiculousness of statutory damages -- and not just how it creates problems for the everyday user, but how it has harmed innovation:

While penalties for copyright infringement are an important tool for deterring piracy, the massive statutory damages currently allowed under copyright law have become unmoored from the actual damages caused by copyright infringement. Plaintiff’s demands in some cases have reached hundreds of millions and even billions of dollars without any evidence of the real magnitude of harm. Viacom’s $1 billion suit against YouTube has dragged on for six years and has cost the streaming site over $100 million in legal fees. High statutory penalties are not only often unreasonable but unpayable. Recently, in its case against the torrent site isoHunt, the MPAA requested nearly $600 million in statutory damages despite admitting that $5 million at most would be enough to bankrupt the defendants. Whether a statutory penalty bankrupts infringers once or a hundred times over probably has little additional deterrent effect. In fact, empirical research by economists suggests that lawsuits do not increase legal sales because infringers’ willingness to pay is generally lower than the market price. Rather, the threat of such large damages and the cost of litigation may deter further investment in web sites that serve as venues for independent production and allow users to upload content without gatekeeper permission for fear of liability. Such venues are critical to the promotion of independent content and are only available online because television and film are controlled by a handful of media companies who decide what content consumers have access to. We suggest further study of the effectiveness of statutory damages in protecting copyright.

The letter also pushes back on the idea of making streaming a felony, as has been pushed for a few years now:

It is important to assess the role of statutory damages in limiting copyright infringement particularly because of the Green Paper’s proposal to make streaming unauthorized works a felony. The extension of a policy that may not actually limit piracy or result in recouped monies to content creators has troubling implications for artistic expression. A broad interpretation of such a law could chill innovation through the use of copyrighted works in remixes, cover versions of songs and fair use. For example, artists like Justin Bieber have used YouTube videos of themselves singing covers as a way to gain exposure. Allowing felony charges for such activities could have a chilling effect on artists who use such independent forums an

While the WGAW is open to changes in the notice and takedown procedure, they (unlike many gatekeepers and maximalists) recognize just how valuable the DMCA's safe harbors have been towards innovation, and worry about what will happen if they're weakened:

Rather, the notice and takedown system in conjunction with the safe harbor provisions of the DMCA strike a balance between the interests of copyright owners and ISPs and sites that allow users to upload content without permission. It has allowed sites like YouTube, where artists may distribute content without permission, to flourish while providing copyright owners a method for removing their own content from such sites. The WGAW believes that efforts should be made to improve this system, both for copyright owners and online sites and services, rather than more drastic measures that would fundamentally alter the nature of the Internet by requiring affirmative policing of content. We echo the comments made by the Future of Music Coalition regarding The Stop Online Piracy Act (SOPA). SOPA moved too far from the balance struck by the DMCA and would have had significant implications for free speech, due process and a competitive online market.

Furthermore, they rightly point out that if we're changing the notice and takedown system, it's more important to fix how it deals with "mistaken or abusive notices that target fair use." It's great to see the WGAW recognize that creators benefit tremendously from fair use as well -- rather than the way some in the creative community still seem to think that fair use is something that harms them. It's not. It's something that is a key part of creativity today.

Another interesting tidbit in the letter is the concern the WGAW expresses towards "voluntary agreements" like the infamous "six strikes" plan that a bunch of major ISPs agreed to with the MPAA and RIAA. As the WGAW notes, this can have serious consequences for the internet and its users -- taking away due process and putting the burden on the accused.

In recent years, the enforcement of copyright has expanded to include voluntary agreements such as the Copyright Alert System (CAS) between major media companies and Internet Service Providers. While these agreements have yet to prove their effectiveness in limiting copyright infringement, they have raised concerns regarding their lack of consumer protections. For example, the CAS appeals process places the burden of proof on alleged infringers and requires the payment of a fee to the arbitrator, although the fee is refundable if the challenge is upheld. Several other aspects of the process are problematic: appeals are not allowed until the mitigation stage, where Internet throttling or landing pages are implemented, and there is no further appeal after a review.

Similarly, the voluntary ad network agreement encourages networks to suspend a website until verifying that it is non-infringing; once again placing the burden of proof on accused infringers. Private agreements must not become a way of circumventing due process when an essential forum for free speech and commerce is at stake. If the government is going to endorse private agreements it should also promote transparency and comprehensive stakeholder participation in these initiatives.

Of course, nearly every argument the WGAW makes equally applies to pretty much any other content creator as well. These days, nearly all of them really do rely on an open and free internet, the innovations the internet has allowed, and the ability to more efficiently create, promote, connect, share, find fans and sell. And yet... many coming out of the old industry have this weird knee-jerk reaction against the internet, as if it's an "us vs. them" thing. We've been saying for quite some time that the right way to deal with copyright policy is to realize that content creators, innovators and the public actually have most of their interests aligned. It's not a zero sum game. It's great to see that the WGAW continues to get this, even if many other "Hollywood" organizations are still confused about it.

Reader Comments

I am...

Unconvinced.

Yes, they're saying stuff that I can agree with, but, at the same time, they're still in Hollywood's back pocket.

Sorry, WGAW, but your corporate masters have soured me so much that even if you were to help push forth the end of copyright completely, I still would distrust and dislike you simply because you're too close to the MPAA and their friends.

Re: I am...

I'd say give them the benefit of the doubt, wait a bit, and if they stick to their guns they should be applauded for having the guts to say something like this, and risking the anger of hollywood. If they do that, then I'd say it would be a good indication that while hollywood may pay them, they don't own them.

Now, if, upon the (inevitable) outcry and objections from hollywood over something like this they do a Republican Study Committee move*, and suddenly retract everything and act like it was all a big misunderstanding, that they didn't really mean it, then yeah, that'll be pretty solid evidence that this was nothing more than a cheap PR move, and that despite it they are indeed 'still in Hollywood's back pocket.'

Re: Re: I am...

Insults only make you look like the dolt.

Fool.

Even if they negotiate against the studios on numerous occasions like you say they do, they still work for Hollywood and get paid by them.

It's like when you see a politician coming out and saying something that seems to be a good thing, you remain unconvinced because you KNOW that politicians tend to vote where the money's coming from if the public doesn't speak up about it enough.

After all, Obama was completely against the NSA's tactics when running for office, now he's for them.

So, excuse me if I remain skeptical about Hollywood's writers taking a stance that's against Hollywood. It seems more like a PR move than anything else.

Re: Re: Re: Re: I am...

Re: I am...

That is some bad reasoning. Being close to MPAA and being industry insiders might actually give them that much broader of a political influence as a counterbalance to MPAA.

The things you can worry about is how they take a broad concept and turning directly to an example which may make some of their legal underscoring (The specific legislation needed to cover the holes described in the cases and the places where to legislate.) less thought out. It does suggest that they do not want to be political about how to solve the problems, but overall strategy and case-law examples are hardly neutral on their own.

i wonder how long before the head will be replaced and those who are (should, hopefully, be all of them) members have their views rewritten in line with Hollywood and the other entertainment industries. as soon as there is one comment, regardless of where it's from, that contains nothing but sense, there is all hell let loose. there definitely needs to be a total boycott of all entertainment industries releases, regardless of whether on media or in a theater. and the thing that is so ridiculous is half the time those who are placed in positions of dishing out punishments openly state the one thing that really makes sense, just as Weatherly from the UK did. he said about making legal alternatives, but he doesn't check what the industries say, accepting their word out of hand. if he were to do what he should or anyone do the thing they should and protect the people, not just corporations who are so full of shit it's unbelievable, then there would perhaps be a difference!

NOTHING NEW HERE except that everyone now has ability to make perfect copies.

Copyright has always been to the good but like all else the problem is those who don't respect other people's property. For example, in the sixties, no car had a steering wheel lock or interlocked ignition. It was those who don't respect other people's property that caused billions to be spent on increasing amount of car locks.

Now, "intellectual property" is the SAME (spare me the "they still have their data" excuse) because regardless all else, those who didn't put in the time and money to make it have ZERO right to consume the product. -- And the people who make the products are rich and influential, so they're certain to increase legal and other constraints. -- In my view they should get far less for making cheap entertainments full of 'splosions, besides that the dimwits addicted to that crap should reform themselves and make their own entertainment, and thereby the problem abates*, but that's not likely to happen because dolting is easy and fun.

In any case, all of the other societal ills STILL does not change that the basic problem is people stealing. Just quit stealing and problem is solved! -- But now we're back to that Mindless CRAP Zombies like Rikuo just can't stop stealing! They BRAG of it. And so the cycle will continue, with Mike re-writing every press release by some unknown bunch of weenies. I admit this is more reasonable in ways, but to focus on the enforcement end instead of the demand is to miss the source problem, just as would be opposing steering wheel locks. Thieving is easy and disruptive: keeping complex rights is difficult. That's the basic asymmetry. Nothing new here!

[Intentional straight line if you want to go for the pun.]Mike frequently runs items on "copyright abuse" intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it's difficult to see how he "supports copyright". -- Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD. (151 of 192)

Re: NOTHING NEW HERE except that everyone now has ability to make perfect copies.

first point Copyright is a tool and when that tool doesn't work you discard it or adapt it and right now copyright doesnt work as dont stop infringers and just scares independient creators althought maybe thats the point

i agree with your second point but there is a problem with your solution you cannot create from a vacuum and copyright is expanding and encroaching many things that should be public domain and many creators are scared that will be sued by an accidental infringement

and i totally agree with your 3rd point stealing is easy and easier even more if you have the lawyers to make your oponent lose or lose all its money is easy with hollywood accounting that made it looks like you are being stolen when you are swimming in cash and even easier when you get the goverment to lock the culture so you can rob them blind oh wait you arent talking about the biggest thieves i retract my agreement

Re: NOTHING NEW HERE except that everyone now has ability to make perfect copies.

If steering locks were DRMed like media and software they would affect the owners and operators ability to utilize the cars and the owners and operators would circumvent them and resent the manufactures.

Spare us the idiocy and intellectual dishonesty of using inaccurate terms like "theft" and "stealing" when nothing is missing. Be honest and call it infringement. "Pirates" by the way have swords and usually attack by sea, they are not nine year old girls who like a song but have no money and operate out of their families' living room. ;)

Re: Re: NOTHING NEW HERE except that everyone now has ability to make perfect copies.

Let the idiot keep on saying how it is Property, how it is theft.

Then watch them whinge like little bitches when it is realised that it is property, and that there are already existing laws for property and for theft and that we no longer require specialized laws when existing property laws cover theft of property.

Re: NOTHING NEW HERE except that OOTB is wrong instead of lying

spare me the "they still have their data" excuse

That is not an "excuse." That is precisely the reason that infringement is not stealing. No less than the Supreme Court said so:

The copyright owner, however, holds no ordinary chattel. [...] The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.

- Dowling v. U.S.

In my view they should get far less for making cheap entertainments full of 'splosions, besides that the dimwits addicted to that crap should reform themselves and make their own entertainment

Stronger copyright laws act against making your own entertainment. I've already explained this to you: because a copyright monopoly is treated as transferrable property, it ends up being hoarded by multinational corporations, who can then control the avenues of distribution. These are the exact same people that are "making cheap entertainments full of 'splosions," and because they hold a monopoly on distribution, they make sure that popular art is nothing but "cheap entertainments full of 'splosions." Make no mistake about it: supporting copyright is supporting corporate monopolies and the "art" they produce.

The only way to break these monopolies is through distribution channels where copyright is relaxed, such that major media corporations cannot effectively gain monopolies on those channels. At the moment, these are internet media companies such as YouTube. In other words, the entities that people need to "make their own entertainment" are the same ones you consistently call "grifters."

As the Writers Guild itself said: "Such venues are critical to the promotion of independent content and are only available online because television and film are controlled by a handful of media companies who decide what content consumers have access to."

the basic problem is people stealing. Just quit stealing and problem is solved!

Most of the problems with copyright have nothing to do with people "stealing." You may never pirate a single thing in your entire life, but you would still have those problems.

Your content can be removed by a false DMCA notice, even if you're not infringing. When they say "the threat of such large damages and the cost of litigation may deter further investment in web sites that serve as venues for independent production," they are not talking about Megaupload. When they say "allowing felony charges for such activities could have a chilling effect on artists," they are not talking about artists ripping off other artists.

So, no, the problem is not people "stealing." The problem is that copyright punishes people who don't "steal" at all.

Re: Re:

Really great reasoning from them... mostly. But saying "if we had these new laws you're considering, we'd never have ended up with Justin Bieber" really isn't helping their case; that's a pretty strong argument in favor of the new laws! ;)

Every single screenwriter learns their trade by reading other people's scripts. Where do they get those scripts? On the internet, and it's pure infringement.

Every screenwriter out there probably has dozens of screenplays they've downloaded from unauthorized sources. And there is no will or desire for them to pay to read other people's work. It won't happen, and nobody's complaining.

So for screenwriters to take a minimalist stance to copyright would be pure hypocrisy from the start.

Re:

at least one section of the entertainments industry has a bit of common sense and can see past the dollar signs and the law suits and see the harm being done to customers far outweighs anything done to the industries. now we'll have to wait and see whether the head gets the sack and how long before the opposite tack comes into play though force from the other sections. one thing in the industries favor is that as long as the UK are prepared to step up to the plate, taking the place of the USA, the industries will continue to make pricks of themselves because of the backing they're getting

Contrast this writer's group (which according to Wikipedia, is a labor union) with another - the Authors Guild (which, again according to Wikipedia, is a "not-for-profit American organization of and for authors").

While both groups purport to represent writers, their attitudes towards the implementation of copyright could not be more different. This paper by the WGA shows a practical and nuanced acknowledgement of the way the world is, rather than the "All infringers must die!" ravings of the Authors Guild, the MPAA/RIAA and others.

It's almost like they want to reach the widest possible audience. Huh.

There's another name for "voluntary agreements".

In recent years, the enforcement of copyright has expanded to include voluntary agreements such as the Copyright Alert System (CAS) between major media companies and Internet Service Providers.

There's another name for "voluntary agreements" such as those: collusion. Particularly when many of the biggest American ISPs and many of the biggest American media companies are part of vertically-integrated silos that own subsidiaries operating in both markets.